Privacy Rights

[ESTEBEVERDE]

I didn't say that taxes, etc had anything to do with the discussion at hand, only that your constitutional absolutist viewpoint that all law flows from it and thus is contained therein is remarkably similar to those of the people I mention.

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The Constitution is the source of all of the laws of the land.

It's plain and simple and is the doctrine that all other laws follow.

I am merely asking for specific examples of where my first Amendment right is abridged when it comes to filming and exhibiting documentaries.

That's all.

I am not a practicing attorney and don't have access to the sort of references that would be needed to provide the minimum level of detail that seems will satisfy you. As Bobonli said, you are setting up a straw man and I have better uses for my time than to tilt at it. I can only reitereate what I have learned over the years from attorneys who do know and from media business reference publications have told me is the situation a filmmaker or photographer faces. You are arguing what you want the law to be and to a certain extent I might agree with you - lord knows, it would makes things simpler if it was like that. But AFAIK you are not correct in regard to what the present business environment requires for prudence. Producers who proceed on the wishful-thinking assumption that your position represents legal fact are placing their productions and their assets in jeapordy.

I am not arguing what I want the law to be. I think the law is pretty fair as it is in terms of privacy rights.


I am simply asking you for concrete legal citation that supports your claim.


It is ok if you want to say that based on your understanding you need to have releases form everyone who's face is recognizable and that you are unable to provide any concrete examples of the laws that require this.

That is ok.

I disagree with you, and, without any evidence to the contrary how could someone possibly be swayed by your argument?

 

[Joe_Kras]

I know it's been referred to in the past, but here is a place you can start, to see what the law says regarding copyright and trademark infringement, and what parts are still muddy:

http://www.law.duke.edu/cspd/comics/zoomcomic.html

 

[ESTEBEVERDE]

Hey Joe.

Great Resource! This is an excellent primer for people to read.

But, I think it is even more relevant to our Fair Use thread as this thread deals only with privacy and not property rights of any kind.

I'll quote it and place a copy there. :thumbsup:



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[Steve House]

The Constitution is the source of all of the laws of the land.

...

It is ok if you want to say that based on your understanding you need to have releases form everyone who's face is recognizable and that you are unable to provide any concrete examples of the laws that require this.

That is ok.

I disagree with you, and, without any evidence to the contrary how could someone possibly be swayed by your argument?

I have also stated that my source for my position is personal communication from attorneys who do have the requisit knowledge of the law and numerous publications that deal with legal matters surrounding media related businesses. One such source that I can commend to you off the top of my head is the "ASMP Guide to Business Practices in Photography." While it is oriented towards still photogrpahy rather than film and video, the privacy issues regardling when personal and property releases are needed are the same. I'm not just making it up or reciting mere opinion. I am drawing from the best sources a lay person might normally have available and relaying them accurately . If my word that I am conveying that information accurately to the best of my ability is not good enough for you or if you think I'm distorting the truth for some ulterior motive there's not much more I can offer.....

I might add you have not cited any statute or case law to support your position either. Nor have you cited any other sources other than your own opinions regarding Constitutional law. Since your position is counter to that generally accepted both within the industry and the legal community, I suggest that the burden of proof rests with you.

 

[ESTEBEVERDE]

I have in fact given you the highest law in the land time and time again, Namely the 1st Amendment.

You said that there is a constitutional law that abridged this right.

I am merely asking for it.

You have not been able to provide any.

You merely are saying you "heard it from a lawyer" and that you are a "layperson" and that's the best you can do.

Please forgive me if I take a pass on your position until such time as we might discover the pertinent case law that supports your position.

Thank you for the information in regards to ASMP Guide to Business Practices in Photography. It looks like it might be an interesting read. The latest addition I could find was September 1, 2001.

Do you know if there is a less dated one with current information?

 

[Steve House]

I have in fact given you the highest law in the land time and time again, Namely the 1st Amendment.

You said that there is a constitutional law that abridged this right.

...
Thank you for the information in regards to ASMP Guide to Business Practices in Photography. It looks like it might be an interesting read. The latest addition I could find was September 1, 2001.

Do you know if there is a less dated one with current information?

I doubt 6 years makes it all that dated when it comes to the basic legal issues facing a media producer.

Please explain how the practical merits of getting my permission to use my property, ie my likeness, in order to defend against my suing you later over its use abridges your constitutional right to free speech? I'm not imposing any limits on what you can say - I'm saying you can't use me and my property to say it with without my permission. Even if I deny that permission you are still free to say anything you wish - you just can't use images of me or my property as a vehicle to do it.

Just as an aside, in my days as on-air talent in talk radio I was sued by a frequent caller to the station who insisted I had abridged his constitutional first amendment rights to free speech and freedom of religion by removing him from the air when he attempted to disrupt a program exploring Wicca with an on-air insulting harange of my guests and repeated Bible readings. His case was summarily tossed out of court. Your claim that you have the constitutional right to use my likeness and images of my property as you see fit without my permission is just as specious as his claim that he had the constitutional right to use my airtime for his religious message.

 

[Joe_Kras]

Sorry about posting that link in the wrong thread. Thanks for moving it.

 

[ESTEBEVERDE]

Sorry about posting that link in the wrong thread. Thanks for moving it.

No worries Joe!


It actually works in both threads!

Great info and thanks again for sharing! :beer:

 

[ESTEBEVERDE]

I doubt 6 years makes it all that dated when it comes to the basic legal issues facing a media producer.
....

Actually 6 Years is the proverbial lifetime as cases are adjudicated new precedence can be set and new legislation often occurs as well.

You should always have the most up to date information at hand.

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Please explain how the practical merits of getting my permission to use my property, ie my likeness, ...

Your "likeness" question is a bit over broad.

If it is an existing painting, photograph, or recording of some nature, it is a copyright issue and not a privacy issue. (This part of the discussion belongs in the Fair Use thread.

If I am making the images and it is just your face in a crowd or if you are the subject of my documentary and my documentary has value as critique, satire, or news (YES DOCS ARE A LONG FORM OF NEWS) then I can legally use your image that I have taken without your permission.

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... in order to defend against my suing you later over its use abridges your constitutional right to free speech? ...

You can sue anybody over anything for any reason regardless of a signed release or not. You can sign a release and still sue. (Happens quite a bit)

The Judge, however, will throw out cases without merit or standing. Furthermore, if you were to sue me and there were no basis, I would motion for the Judge to order you to pay all of my attorney's fees and associated legal expenses.

So, you see, there are checks and balances both ways due to the Complaintant's legal exposure as well.

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... I'm not imposing any limits on what you can say - ....

You actually have very little power whatsoever to legally place limits on my speech.

...
... I'm saying you can't use me and my property to say it with without my permission...

I'm not quite sure what you are saying here.

What do you mean by using you and your property. Property rights are entirely different from privacy rights.


If you are out in public you are fair game.

If you are in your yard, you are fair game.

If you are standing in your living room, with the curtains open, you are fair game.

I may not come onto your property and record you without permission (trespass) but I certainly can do it from the sidewalk.

On the other hand, I cannot stand on the sidewalk and record you with an Infrared Camera through closed curtains. This is an invasion of your privacy as a "reasonable person" would expect to have privacy in this situation. (Believe it or not, there is case law that say the poilice may not use FLIR to look into your home either.)

...
... I'm saying you can't use me and my property to say it with without my permission. Even if I deny that permission you are still free to say anything you wish - you just can't use images of me or my property as a vehicle to do it.
.

Not true at all. What laws do you base this on!?!?!!? For news and documentary purposes (Documentaries are long form News) Sure I can. Why couldn't I?

You keep saying property. Please be more specific. Do you mean Real Property? (That's what is commonly called "Real Estate")

If you mean a picture of your house or a building you own, I sure can no problem.

... Just as an aside, in my days as on-air talent in talk radio I was sued by a frequent caller to the station who insisted I had abridged his constitutional first amendment rights to free speech and freedom of religion by removing him from the air when he attempted to disrupt a program exploring Wicca with an on-air insulting harange of my guests and repeated Bible readings. His case was summarily tossed out of court. ...

See, anybody can sue for anything.

The Judge weighed the merits of the case and tossed it out on it's ass just like he or she should.

If the Judge would have forced you to give him equal time, that would have abridged your 1st Amendment Rights and abridged your property rights. (Equal time was a doctrine in regards to publicly leased airwaves such as your radio show but it is not the case anymore.)

If on the other hand, the guy stood out in front of the station on public property with signs and other supporters and quoted bible readings to you and told you that you were going to hell and you had your security goons go and move or accost those bible thumpers, you would be in deep water both civilly and criminally.

...Your claim that you have the constitutional right to use my likeness and images of my property as you see fit without my permission is just as specious as his claim that he had the constitutional right to use my airtime for his religious message.

Again, you are very very confused about the property issue. The only property I can use without your permission is your intellectual property if it conforms to Fair Use. Again, a totally different subject in a totally different thread.

As to your likeness, I sure can, as long as I am the copyright holder of the image and it is incidental use or you are the subject of my criticism, comment, satire, or the focus of my story (Documentary, News Clip, Web Cast....).


If you are saying that I can't then the burden is on you to show me the pertinent law(s).

 

[Steve House]

You are clearly more interested in prevailing in your case than you are in conducting conversations that help other filmmakers with their work. IMHO the purpose of a forum such as this is not combat or debate. But you are apparently more interested in strife for strife's sake, winning rather than helping. You are clearly a man with an agenda.

I've stated the realities that media professionals must deal with in these matters to the best of my understanding. Other knowlegeable contributors and industry professionals, including practicing media and IP attorneys, here and in other video fora, concur with my position. I believe that other visitors who rely on your misinformation in the conduct of their business will eventually find themselves with their t*ts in the proverbial wringer - I urge you to consider the potential harm you are causing. Meanwhile, I can deal no more with your combative intransigence as it contributes nothing to the furtherance of the art. I'm done here.

 

[David W. Richardson]

If you are saying that I can't then the burden is on you to show me the pertinent law(s).

Actually, if you think you CAN, then by all means take the chance and deal with the consequences. But if you're telling OTHER people that THEY can -- then the onus is on YOU to provide the case law to back up your claim.

If it's me, I'm going to consult a lawyer -- and I'll definitely take that lawyer's word over anything I read on any online forum, no matter who the poster is or what his credentials may be. I have too much to lose to do otherwise. If you don't, then by all means -- forge ahead and fight the good fight. God bless!

 

[ESTEBEVERDE]

Actually, if you think you CAN, then by all means take the chance and deal with the consequences. But if you're telling OTHER people that THEY can -- then the onus is on YOU to provide the case law to back up your claim.

If it's me, I'm going to consult a lawyer -- and I'll definitely take that lawyer's word over anything I read on any online forum, no matter who the poster is or what his credentials may be. I have too much to lose to do otherwise. If you don't, then by all means -- forge ahead and fight the good fight. God bless!

You should most definitely seek competent legal council and, if you have a project you want to go big, get E&O insurance at the appropriate time.


As I've stated, unless something is expressly forbidden it is legal. So, in the absence to law contrary you can do it.

I even quoted the pertinent article in the U.S. Constitution that protects and enshrines our rights to freedom of speech.


You are telling us there are limits and that you know the limits.

I am merely asking for your evidence. To date you haven't shown any. That is your failure and yours alone.

 

[ESTEBEVERDE]

You are clearly more interested in prevailing in your case than you are in conducting conversations that help other filmmakers with their work. IMHO the purpose of a forum such as this is not combat or debate. But you are apparently more interested in strife for strife's sake, winning rather than helping. You are clearly a man with an agenda.

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My agenda is to clearly show that you have unalienable rights to freedom of expression. There are limits, but you have time and time again failed to show them.

You claim you know what they are but have no evidence.

Pardon me for not putting to much stock in that.

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I've stated the realities that media professionals must deal with in these matters to the best of my understanding.

...

Steve, I believe you honestly have and I do understand where you are coming from and do respect the earnest efforts you have made.

I sincerely thank you for that.

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Other knowlegeable contributors and industry professionals, including practicing media and IP attorneys, here and in other video foram, concur with my position. ...

Your only position you have stated is that it is mandatory to get releases from each and every person that appears in a documentary and that you need them to show their buildings as well.

You claim you know the limits on our free speech and that all of these "experts" are on your side but you fail to provide a single law... not even one.

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I believe that other visitors who rely on your misinformation in the conduct of their business will eventually find themselves with their t*ts in the proverbial wringer.

What misinformation? That you don't need a release for all the people in your documentary nor a release to show any buildings? (For documentaries work you certainly don't need a release for showing the exterior buildings or anything on the property that is in public view.)

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I urge you to consider the potential harm you are causing. ....

If there is harm in having people take a few minutes to lean their rights and the limitation on those rights so be it.

The constitution is not for nut jobs as you have tried to claim. It is for each and everyone of us.

Film makers in particular have a responsibility to protect these rights.

...
Meanwhile, I can deal no more with your combative intransigence as it contributes nothing to the furtherance of the art. I'm done here.

Thank you all the same.

At some future date, should you have tangible information as to the limits to our free speech as it pertains to privacy rights, please know it will be most welcome here just as you are now and will always be.

Take Care.

Until then...